A Comprehensive Guide to Conducting a Background Check for Sexual Misconduct

Every employer has an ethical obligation to provide a safe and respectful workplace for all employers. There are many definitions of workplace safety. For instance, workplace safety often applies to procedures, policies, and protocols designed to reduce construction site accidents in the construction trades. 

However, it is crucial to recognize that workplace safety extends to employment and that all employees deserve an environment where they don't have to fear being harmed by their coworkers. 

As such, employers must adopt strategies to avoid hiring people who might pose a to their fellow workers. Most businesses have protocols to minimize the likelihood of these types of bad hires – namely, background checks that look for a history of violence. 

In addition, since the start of the #MeToo movement, there has been a growing focus in the employment world on how employers can prevent sexual misconduct in the workplace through employment screening

From sexual harassment to sexual assault, misconduct in the workplace can cause a long list of negative consequences for a business or organization. For example, a workplace with a sexual misconduct problem will likely face issues with company culture, talent attraction and retention, and overall employer image. 

In addition, severe cases of sexual misconduct in the workplace can sometimes result in costly and brand-damaging lawsuits. For example, numerous high-profile companies, including Google, 20th Century Fox, the Ford Motor Company, and Kroger, have faced highly public lawsuits over allegations involving sexual harassment, sex discrimination, or other forms of sexual misconduct.

In response, employers are trying various strategies to reshape their work environments to prevent these types of risks. Some of those tactics focus on internal training and education. Others involve ramping up background checks to stop the behavior before it starts. One method that some employers have adopted or emphasized anew in response to the #MeToo movement is the sex offender background check.

What Employers Need to Know About Sex Offender Background Checks

Every state (plus Washington, D.C.) has a sex offender registry, a database keeping track of those convicted of sexual offenses. The purpose of a sex offender registry is mainly to aid public identification and awareness of sexual predators. 

For example, a family with young kids might check a sex offender registry when shopping for a house to ensure they “aren't buying a home that is near where a sex offender lives”. Similarly, sex offender registries help law enforcement keep tabs on offenders and ensure they '“aren't breaking certain rules”, such as living too close to a school. The earliest sex offender registries date back to the 1940s, though the trend 'didn't become commonplace until the 1990s.

A background check for a sex offender is when an employer incorporates sex offender registry searches as part of pre-employment vetting. The idea is not merely to understand whether a candidate has been convicted of a sexual offense – such as rape, child molestation, indecent exposure, possession of child pornography, or criminal sexual conduct. 

Usually, these crimes would also be flagged as part of a criminal background check. A sex offender registry check, while undoubtedly helpful in identifying individuals who have committed sexual offenses, also has the added benefit of informing employers whether any candidates are registered sex offenders. 

However, what is a sex offender, exactly? 

Typically, anyone convicted of a sex crime will be required to register as a sex offender for a certain number of years. While employers can consider sex crimes even after a candidate is no longer a registered sex offender, sex offender status usually comes with extra weight. 

For example, employers can face more liability exposure if they hire a registered sex offender than a sex criminal who is no longer required to register. Additionally, some employers – such as schools – are not legally allowed to recruit sex offenders in some parts of the country. 

Because of these factors, a sex offender background check is a worthwhile component of pre-employment background screening.

Here are a few additional details about sex offender background checks and how they work:

Level 2 Background Checks

The term Level 2 check will only have meaning for employers in the state of Florida.

While Level 1 and Level 2 are sometimes used in the context of background checks to denote different background check tiers, a Level 2 background check is a specific type of background screening existing as part of Florida's state background check screening system. 

In Florida, a Level 1 background check is a name-based background check that searches state criminal history databases, employment history, local county criminal records, and sex offender registries. A Level 2 check adds fingerprint-based searches of records maintained by the Florida Department of Law Enforcement and the FBI.

In some situations, a Level 2 background check may be required, given the belief that fingerprint background checks are superior to name-based alternatives. However, employers in Florida can take comfort in knowing that either type of check incorporates a sex offender registry search.

While Level 2 background check is most often used only in Florida, note that sex offenders tend to be classified by risk levels. A "risk level 1 sex offender", has been deemed the lowest risk for repeat offending and, therefore, the lowest threat to public safety. Conversely, Level 2 and Level 3 indicate a higher risk for repeat offenses and public safety.

What About Offenders Who Cross State Lines?

One concern around sex offender registries is that they are state-based.

Every state has a sex offender registry, and information from one will not typically carry over to another. As a result, if a sex offender crosses state lines, the new state's sex offender registry check may miss that person's sex offender status. 

Technically, sex offenders are required to report any relocations. In Michigan, for instance, a registered sex offender threeplanning to move out of state is required by law "to report to their nearest law enforcement agency three business days before moving to provide their new address." 

The Michigan State Police Sex Offender Registry Unit notifies the other state of the ' 'offender's new address. Similarly, Michigan requires that offenders moving to a new country must report that information to their local law enforcement agency ahead of time.

Notably, a sex offender who follows proper protocol to switch their address to a new state will no longer be listed on the original state's sex offender registry. The idea of a sex offender registry is to track current, up-to-date offender locations and details. As such, law enforcement agencies in charge of sex offender registries try to avoid outdated entries of those who no longer reside in their states. The caveat is that some sex offenders may try to avoid detection by leaving their state without notifying anyone, perhaps adopting an alias to obscure their identity. 

The good news is that there are ways to detect aliases, past addresses, and active sex offender registry information in other states. 

At backgroundchecks.com, we offer alias and address history checks, using a person's Social Security Number to identify details. Employers can then use these details to order background checks in other states or for other names. This strategy helps find sex offender registry listings in other states and widening the scope of a criminal background check.

Tribal Registries

Native American tribes are sovereign nations and therefore have their own systems, records, and databases for many things, including law enforcement. However, that 'doesn't mean tribal records 'can't be utilized by employers. 

If you need to search tribal sex offender records, note that the United States Department of Justice provides a Tribe and Territory Sex Offender Registry System (TTSORS) to tribes and territories (such as Puerto Rico and Guam) to assist in creating proper sex offender tracking infrastructure. 

While these tribal and territory systems are only fully accessible to tribe and territory agencies responsible for the management and registration of sex offenders”,  many tribal nations make these registries available to employers or other users online, free of charge. 

Most sex offender registries – including state-run registries – are available online and can be searched by anybody. In addition, most states allow you to search for specific sex offenders by name or to find registered sex offenders living within a specified radius. Often, people use the latter search option to determine whether there are any registered sex offenders living in their neighborhood.

What Shows up on a Sex Offender Background Check?

A sex offender registry will typically include the following information about any given registered offender:

  • Full name (first, middle, and last).
  • Sex.
  • Age and date of birth.
  • Race.
  • Identifying characteristics (such as height, weight, eye and hair color, scars, marks, tattoos).
  • Photo.
  • Sex offender registration number.
  • Addresses (including primary home address and work address).
  • Status notes (including whether the listing is active and whether the offender is compliant with state laws).
  • Offenses (typically, the sex crime with which they were charged and convicted; conviction state, county, court, and date are also provided).
  • Aliases.
  • Vehicles (including make, model, year, license plate number, and color).

Which Offenses Are Included in Registries?

A sex offender registry is mainly intended to act as a public safeguard. 

By requiring individuals who commit sex crimes to register and then classifying them based on a risk level assessment, law enforcement creates a system that anyone can use to determine their proximity to and possible risk from sex offenders. So, while a criminal history check will typically tell you whether a person has a sex crime conviction, a sex offender registry can provide more information about the risk that person poses to their neighborhood or community.

Any crime related to sexual activity can require a perpetrator to register as a sex offender. Examples include sexual assault, rape, criminal sexual conduct, child sexual abuse, indecent exposure, solicitation of prostitution, statutory rape, kidnapping of a minor, child pornography, and more.

#MeToo and its Implications

The #MeToo movement has opened up a vital dialogue about sexual politics in the United States and worldwide, including in the workplace. Moreover, the implications of the #MeToo movement for background checks and hiring have been considerable. As a result, employers everywhere are eager to avoid hiring people who might create a culture of sexual harassment (or worse) within their company. 

Of course, many of those implications are also entirely unrelated to background checks. For instance, many employers have been getting more proactive about training their employees on matters of sexual harassment in the workplace and on behaviors that can help bring about a safer, more equal environment for all. 

In addition, employers these days are less likely to respond to allegations or instances of sexual misconduct with soft punishments. Instead, zero-tolerance policies are increasingly common, resulting in perpetrators being fired immediately over sexual misconduct matters rather than given a “slap on the wrist.".

However, many employers are also trying to adopt better vetting processes in the #MeToo age. From local government to the Air Force, to religious organizations, to sporting organizations, to youth-serving entities like the YMCA or childcare organizations, many stories show the importance of policies that help create environments free from sexual misconduct.

However, sex offender background checks are one piece of that puzzle. More thorough criminal history checks, employment verification checks touching upon why a person left their previous job, and reference checks are all approaches to increasing an employer's likelihood of spotting red flags. 

Similarly, some employers may check a person's social media accounts to see how they interact with or talk about people of the opposite sex. The idea is that, even if a person has never been convicted of a crime, there may be behavioral patterns in their past indicating whether they might be a sexual misconduct risk.

Why Do Employers Conduct Sex Offender Background Checks?

As with standard criminal background checks, employers run sex offender background checks for two main reasons: 

1) To protect their employees, customers, and clients from potentially dangerous hires.  

2) To avoid hiring decisions that may lead to costly legal liability. 

Suppose a youth sports nonprofit neglected to run a sex offender background check and hired a coach with a history of child sexual abuse. In that case that organization puts the kids it serves at risk and opens itself up to significant liability for potentially negligent hiring lawsuits. 

Sex offender background checks are protection that small business owners, nonprofit leaders, and enterprise CEOs can utilize to help minimize both areas of risk.

Sex Offender Employment Laws

Employers looking to implement sex offender registry checks for all employees will have critical questions about employment law. However, the biggest of those questions is probably the simplest: Can I refuse to hire all sex offenders? 

This question is difficult to answer. Were you to ask a similar question about anyone with a criminal history (for example, "Can I refuse to hire anyone with a criminal record?"), the answer would be no. 

Typically, when it comes to criminal background checks, employers must look for a direct and relevant connection between a crime and the job at hand when deciding whether there is cause to disqualify a previously convicted applicant. Similarly, most legal experts hold that there must be a connection between the job in question and a ' 'candidate's sex offender status for the employer to deny that person a chance at employment.

Of course, it is essential to note that not all sex offenses are equal. For example, a person can be a sex offender for violent crimes such as rape or child sexual abuse but may also be listed for a non-violent occurrence such as soliciting prostitution. As such, employers should pay attention to the specific crimes requiring a candidate to register as a sex offender. 

State Laws

Note that how an employer handles sex offender registry information in a hiring context can and does vary significantly across states. 

Some states outright prohibit employers from considering sex offender registry information as part of the hiring process. California is the most common example, as state law does not allow employers to consider sex offender registry data when making employment decisions. The California law protecta offenders from "additional punishment" or retribution once they have already served prison time or otherwise completed their sentencing requirements. 

As with other laws that restrict the use of background check information in the hiring process, this law helps prevent people from consistently and repeatedly being punished for a past offense. Criminal justice advocates believe this approach is crucial to allowing ex-offenders to rebuild their lives and compensate for their past misdeeds.

Bottom line, your state may not even allow you to use sex offender registry background checks as part of the hiring process, let alone implement blanket policies barring all sex offenders from your workplace. Therefore, you should check your state's laws, through research or attorney consultation, to ensure you are using background checks in a responsible and legally compliant fashion.

Important Information to Consider

Beyond your state's laws, the most important rule of thumb when considering sex offender registry information in a hiring context is the specific nature of the crime. While ' 'it's easy to assume that all sex offenders pose a risk to your employees or customers, some of these offenders present a higher risk than others. 

As with any other type of criminal background check, it's important to look at the actual crime that the person committed, the severity of that crime, how long ago the offense occurred, and the presence of repeat offenses on the person's record. 

Finally, look at those details in the context of the vacancy. Is there a direct line between the job and the offense, to the point where hiring that person would predict issues for your business? For instance, you should not hire a child sexual abuser for a job involving working closely with children. At the same time, an employer filling a warehousing job where the candidate will never have any contact with children might not have the same grounds for disqualification. 

How Long Does a Sex Offender Background Check Take?

Because most sex offender checks are simple searches of existing online databases, most can deliver information instantaneously. 

FAQs

Can a Registered Sex Offender Pass a Background Check?

Employers are not allowed to implement blanket policies that disqualify any sex offender from any employment. 

This approach opposes Equal Employment Opportunity Commission (EEOC) guidance and can be considered discriminatory. As such, it should be possible for a sex offender to "pass a background check, in that employers are expected to look at sex offender information on a case-by-case basis to decide whether or not to disqualify a candidate. ' '

That's not to say any employer is required or obligated to hire someone listed on a sex offender registry, but rather that hiring managers should try to assess the relevance of the ' 'candidate's specific crime to the job at hand when hiring. 

Another way for a sex offender to pass" a background check is by evading detection. Fortunately, law enforcement tends to be vigilant about tracking down individuals required to register as sex offenders but doesn't. Failure to register as a sex offender also carries consequences and punishments.

Does a Sex Offender Always Show Up on a Background Check? 

Yes, sex offenses will typically show up on background checks. 

Since sex offenses are crimes, they will be a part of a person's criminal record, and can also be tracked through sex offender registries, which exist in all 50 states and are used to monitor the location, status, risk level, and other crucial details of sex and violent offenders.

Will Harassment or Restraining Order Charges Impact Job Opportunities?

Increasingly, employers are taking sexual harassment issues in the workplace seriously.

In particular, the #MeToo movement has forced employers to consider how sexual harassment can create unsafe, unwelcoming, and discriminatory work environments, introducing a vital #MeToo background check. 

As such, someone with a documented history of sexual harassment – including a restraining order for harassing, stalking, or otherwise threatening another person – would likely see those factors negatively impacting their job chances.

Links for reference and inspiration

  1. https://www.backgroundchecks.com/resources/sexual-conduct
  2. https://www.backgroundchecks.com/blog/what-is-a-sex-offender-and-more
  3. https://iprospectcheck.com/sex-offender-background-check/
  4. https://www.goodhire.com/resources/articles/what-shows-up-on-a-sex-offender-background-check/
  5. https://www.backgroundchecks.com/resources/sexual-conduct
  6. https://www.backgroundchecks.com/blog/tag/metoo
  7. https://iprospectcheck.com/sex-offender-background-check/
  8. https://www.goodhire.com/resources/articles/what-shows-up-on-a-sex-offender-background-check/

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